Public Law
January 2022

Summary:

The matter concerns an application by a Local Authority for forced marriage protection orders (“FMPOs”) in relation to two girls aged 16 and 13. At the initial hearing, the Court granted FMPOs, prohibited the parents from removing the children from the jurisdiction and ordered for the police to retain the children’s passports; this decision was made largely on the basis of some closed material that was disclosed to the Local Authority and children’s guardian but not to the father. Mr Justice Poole considered the legal test for FMPOs and applications to withhold information in cases concerning children. Poole J also noted that the use of a special advocate in family proceedings is rare and should continue to be rare, but sanctioned the use of a special advocate in this matter and highlighted the necessity for it.

Background:

The matter concerned two girls, aged 16 and 13 respectively, who lived with their father in England - their mother and two older adult brothers lived in Bangladesh. The father had booked one-way tickets for himself and the two children to Bangladesh and informed their school that they would be taken out of school for a short period to visit their paternal grandfather in Bangladesh. The two children had previously missed at least three years of schooling due to an extended trip to Bangladesh.

South Yorkshire Police were contacted and, upon review, seized the passport of the father and the two children on 13th November 2020. On 18th November 2020 the Local Authority applied for FMPOs in relation to both children. The Court made the orders sought and the orders were extended at subsequent hearings. The children were made party to the proceedings in August 2021.

The mother has failed to engage with proceedings, despite herself and her two older sons returning to England; the mother later returned to Bangladesh in June 2021. The Court was concerned that the mother’s voice had not been heard within proceedings but had done all that they could to try and get the mother to engage.

In making the application for FMPOs, the Local Authority relied on evidence that had been provided to the court but had not been disclosed to the parents (“the closed material”). Poole J had directed at an earlier hearing that the closed material shall remain closed, that the parents shall be informed that an application has been made to withhold evidence from them and orders made on the basis of that closed material.

Poole J then held another hearing where the father’s position remained that the closed material should be disclosed to him (as well as the passport order and FMPOs being discharged/set aside). Poole J continued to order that the closed material be withheld from the parents but directed that considerations should be given as to whether a special advocate was appointed.

All parties agreed that a special advocate should be appointed on the question of disclosure and to assist the father, if needed, at final hearing.

Decision:

Poole J noted the need to consider the article 2, 3 and 8 rights of the protected parties as well as the article 6 and 8 rights of the father, but that this was not a true balancing exercise; Poole J noted the judgement of Sir Andrew McFarlane in In Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190 and the requirement to accommodate the requisite competing rights rather than balance them.

The approach of Sir James Munby in Re B (Disclosure to other parties) [2001] 2 FLR 1017 (endorsed by the Court of Appeal in Re R (Children: Control of Court Documents) [2021] EWCA Civ 162), that the power to restrict access to documents should be used only where strictly necessary and that article 6 rights did not require absolute and unfettered access to all documents, was considered by Poole J when assessing the need for a special advocate.

The determination reached by Poole J was that special advocates should only be used on rare occasions, but that the use of a special advocate was necessary in this matter. Poole J outlined 10 reasons at paragraph 20 of his judgement as to why the special advocate was necessary, the most notable being: that the closed material was of profound significance; that the father would be unlikely to be able to meaningfully participate in the final hearing unless he had some means of scrutinising the closed material; that the Local Authority in this case would likely withdraw their application for FMPOs before disclosing the closed material to the father which risks the fundamental rights of the children and that a special advocate was the only mechanism that had been suggested that would proportionately accommodate the father’s convention rights within the context of FMPO proceedings which concern the fundamental rights of children.

Summary:

The consideration of Lord Justice Baker, Lady Justice Whipple and Mr Justice Francis of an appeal made after a fact-finding hearing in February 2021, on the grounds of procedural irregularity and unfairness. The ground of appeal, which was ultimately successful, concerned psychological assessments of A, undertaken in subsequent care proceedings, which highlighted that A may need an intermediary/special measures in order to properly take part in proceedings, which she did not have at the fact-finding hearing. The court acknowledged that not every failure to comply with FPR 3A and 3AA would result in a successful appeal; the appellate court needs to identify: firstly, has there been a serious procedural or other irregularity and if so, whether the decision was unjust as a result of that irregularity.

Background:

The fact-finding hearing took place in care proceedings relating to a girl, S. The principle issue at that hearing related to injuries sustained by J, a boy who was not subject to the proceedings, but became the focus of proceedings as S’s parents (X and Y) were in the pool of possible perpetrators. J’s mother, A, was joined as an intervenor to proceedings. HHJ Nisa found that most of the injuries sustained by J were accidental but that some had been inflicted by A. A appealed to the Court of Appeal against the findings made against her.

The Local Authority instigated a s.47 investigation after J had returned to school, after a weekend in which he spent time with X and Y (but was returned to A’s care prior to attending back at school), with 23 marks, bruises and abrasions on his face and body. The doctor conducting the examination concluded that at least some of the injuries were non-accidental. Proceedings were issued by the Local Authority on the basis that S was likely to suffer significant harm.

The fact-finding hearing, which extended over 9 days in January and February 2021, considered not only J’s injuries but also allegations of domestic abuse between X and Y and A’s use of ketamine. The Court was asked not to make any findings against A that went beyond the single question of the perpetrator of J’s injuries – the court rejected this argument and refused permission to appeal that point.

Evidence was heard at the fact-finding hearing from both X and A. When summarising A’s evidence, HHJ Nisa found that A had lied about the extent of her ketamine use, had been calculating and manipulative in trying to point the finger at X when she knew that she had inflicted those injuries herself and had caused some of the injuries to J (including slap marks to the face). Permission to appeal these findings was denied by HHJ Nisa.

Some months later, the Local Authority issued proceedings in respect of J and his older brother, which are ongoing.

When making her appeal, A was granted permission to appeal on five of the six grounds she appealed under. A was also granted permission to amend her grounds of appeal to include a new ground of appeal based on procedural irregularity and unfairness, as A had cognitive difficulties which were unidentified during the fact-finding hearing. It was noted in her grounds of appeal that A may have been assisted by an intermediary and that, as findings were made without consideration or adjustments for the needs of A, the findings are unsafe.

The court noted various psychological reports and an email from Communicourt, most of which recommended an intermediary due to A’s difficulties processing information, understanding complex terminology and vocabulary and remembering key dates. A gave her evidence during the fact-finding hearing remotely, in a room on her own at her Solicitor’s office, which was normal practice during the pandemic.

Decision:

The Court confirmed the recognition in FPR 3A and 3AA that provisions need to be made for vulnerable persons to participate in proceedings, and that this extends to someone with the same vulnerabilities as A. The court set out the relevant rules within FPR 3A and 3AA at length at paragraphs 31 to 37 of their judgement; it was noted that these provisions are of fundamental importance to the administration of family justice and that the court have a duty to identify persons at the earliest possible stage and consider directions for special measures accordingly. This duty does not end until proceedings end, and so the court should continue to consider whether any parties have vulnerabilities and the potential requirements for special measures. The Court also explained that it is good practice for the parties’ representatives to actively address the question of vulnerabilities at the outset of proceedings and throughout.

The Court then considered the observation of Lord Justice King in Re N (A Child) [2019] EWCA Civ 1997: “A wholesale failure to apply the Part 3 procedure to a vulnerable witness must…make it highly likely that the resulting trial will be judged to have been unfair.” However, Baker LJ, Whipple LJ and Francis J came to the view that failure to comply with FPR 3A and 3AA, whether through oversight or inadvertence, does not mean that an appeal will automatically be successful. The Court then explained that in this case, they were confident that HHJ Nisa would have adopted a careful approach to A’s evidence, if she had been aware of her difficulties, due to the opportunities afforded to X to have a fair opportunity to give evidence.

The ultimate and clear conclusion reached by the Court was that the failure to identify A's cognitive difficulties and make appropriate participation directions, to ensure that the quality of her evidence was not diminished as a result of vulnerability, amounted to a serious procedural irregularity and that as a result, the outcome of the hearing was unjust. One consideration that gave rise to this conclusion was that HHJ Nisa’s assessment of A’s character and plausibility were central to the findings made against A.

The Court allowed A’s appeal on the grounds of procedural irregularity but stressed that this was not an indication that HHJ Nisa’s findings were wrong, as any adaptation of the hearing to assist with A’s difficulties would not necessarily have led to a different outcome. It was made clear that the appeal was allowed on the basis that the decision was unjust because there are strong reasons to suspect that A did not have a fair opportunity to present her case.

Summary:

Mr Justice Cobb confirmed the steps that should usefully be taken, and the information that should be provided, when making an application for additional third-party disclosure against Her Majesty’s Prison and Probation Service (“HMPPS”) and similar bodies connected with the criminal justice system, in cases relating to the risks posed by a parent who has been convicted of terror offences, or that are otherwise factually similar to this case. Cobb J also noted the importance of co-operation and co-ordination between all safeguarding agencies involved with children in order to achieve good and informed decision-making in their best interests.

Background:

The matter concerns the four younger children of Mrs J and Mr K. Mr K was imprisoned in 2015 for offences under the Terrorism Acts 2000 and 2006. Mr K was subsequently released from prison on license in 2021; the Local Authority then issued proceedings.

The central issue in proceedings was the potential risk posed to the children given the father’s proven engagement with terrorism and the fact that the parents remained married and ideally wished to live together with the children.

Cobb J, at an earlier case management hearing, directed disclosure from HMPPS around the circumstances of the father’s convictions, his attitude to those offences and his conviction and his ideologies. Disclosure was provided by HMPPS. A psychologist was then jointly instructed by the parties to advise on the family’s functioning, the risk posed by the father and the mother’s capacity to protect – the psychologist requested further information which was thought to be held within documents generated during the criminal justice process. Cobb J then made an order for further disclosure from HMPPS.

The Secretary of State for Justice (“SSJ”) responded to the Court’s direction, indicating a willingness to comply, but also making submissions on how the Court should order additional disclosure.

Submissions:

SSJ, through Counsel Ms Patterson, referenced the guidance offered by Sir James Munby (then President of the Family Division) in relation to cases concerning suspected radicalisation/terrorism, namely “Radicalisation Cases in the Family Courts” (October 2015). Therein, importantly, the President highlights: the need to avoid inappropriately wide or inadequately defined requests for disclosure of information or documents by the police or other agencies; the need to avoid seeking disclosure which might compromise ongoing investigations, damage the public interest or put lives at risk, unless the judge is satisfied that such disclosure is necessary to enable the court to resolve the proceedings justly; the importance of the family justice system working together in co-operation with the criminal justice system to achieve the proper administration of justice in both jurisdictions and that the court should be careful to identify in their directions for disclosure: the issues which arise in the family proceedings; the types of information it seeks; and the timetable set by the court for the family proceedings.

Ms Patterson, on behalf of SSJ, noted the compelling argument for the Family Court to receive disclosure of any material, but explained the difficulties with regards to: the time taken to collate the documents, the need for redaction, the fact that some documents are produced on a rolling basis and the fact that the offender may have been provided with copies of certain documents. Ms Patterson suggested that time could be saved if the offender informed their legal team that they have relevant documents and then the appropriateness of disclosure of those documents can be considered by the SSJ and the Parole Board.

Ms Patterson then went on to detail a preferred process for parties seeking disclosure from HMPPS in care proceedings and the information that should be included within that request for disclosure (listed at paragraphs 13 to 16 of the full judgement). It is submitted on behalf of the SSJ, that by following this process, the requests will be considered by someone who: is legally qualified; will appreciate the significance of the request but also the potential urgency and who may also anticipate what classes of document would be necessary and what redaction would likely be required. It was also submitted that a short summary of the issues and relevant information would assist any request for disclosure, as the SSJ may be able to suggest relevant documents which were not identified by the parties.

Decision:

Written judgement was given after consideration of written submissions from all parties.

Cobb J endorsed Sir James Munby’s 2015 guidance and confirmed its importance in all similar cases. It was also accepted that there are difficulties when ordering disclosure from HMPPS and other bodies connected to the criminal justice system, but Cobb J observed that the Court may not be generally comfortable with relying on an offender to provide the requisite disclosure and confirmed that this may need to form part of a two-limb test with the second limb being a formal request for disclosure.

It was confirmed that the proposals put forward by SSJ could and should usefully be adopted by those making third-party disclosure applications in circumstances similar to these. Cobb J also noted that without notice applications for third-party disclosure are best avoided, save in cases of genuine emergency.

Cobb J concluded that: “some of the most difficult cases with which the courts must deal span both the criminal and family courts often at the same time; the children involved, and their families need consistent treatment within the justice system - consistency, liaison and, where possible, co-operation across the two systems are essential. This case underscores the importance of co-operation and co-ordination between all the safeguarding agencies involved with children in order to achieve good and informed decision-making in their best interests.”